Prosecutors: Flagler sheriff did nothing illegal in Fischer case

Published: Wednesday, December 5, 2012 at 11:46 a.m.

Last Modified: Wednesday, December 5, 2012 at 11:46 a.m.

PALM COAST -- Flagler County Sheriff Don Fleming did not have "improper or illegal contact" with School Board member John Fischer or Fischer's wife, Jamesine, related to a fatal crash, but the sheriff's conflicting and inaccurate account about phone calls fueled public speculation of wrongdoing by a public official, according to prosecutors.

Jamesine Fischer is charged in the Nov. 10, 2011, crash that killed 76-year-old Francoise Pecqueur of Palm Coast as she walked her dog in the C-section of Palm Coast. Jamesine Fischer, 56, did not call the Sheriff's Office to report the wreck until just after 5:30 a.m. Nov. 11 — about 11 1/2 hours after the crash.

Fleming has said that just before Jamesine Fischer called the Sheriff's Office her husband called him at about 5:30 a.m. Nov. 11.

But on Jan. 31, 2012, Fleming gave investigators a detailed account of calls between him and John Fischer on the night of the accident, Nov. 10. The next day, Fleming called the Florida Highway Patrol and revised his story, according to an interim report from the office of State Attorney Norman R. Wolfinger of the 18th Judicial Circuit.

"From all available objective sources and interviews with Sheriff Donald Fleming, John Fischer, and Jamesine Fischer, there is currently no evidence that Sheriff Fleming had any improper or illegal contact with John or Jamesine Fischer in relation to the traffic crash that occurred on November 10, 2011, in Palm Coast, Florida," the report states.

"It is clear, however, that Sheriff Fleming's inaccurate and conflicting statements, one of which was made under oath, contributed to the public speculation of wrongful actions by a public official," the report states.

Fleming did not return a phone call seeking comment.

Prosecutors subpoenaed phone records, including cellphones, and found no records of calls between Fleming and the Fischers on the day of the accident, according to the report.

But to add to the questions surrounding the case, John Fischer told prosecutors that he did not call the sheriff at 5:30 a.m. Nov. 11. Phone records did not show that call either.

But Fleming said he received the call from John Fischer on a landline, the records of which would likely not show local calls.

The report was submitted by Russ Bausch and Laura Moody, both assistant state attorneys for the 18th Judicial Circuit, which received the case after local 7th Circuit State Attorney R.J. Larizza requested the governor reassign it because Fleming was a potential witness.

The Fischer controversy and a separate ethics complaint involving a complimentary membership to Hammock Beach Resort likely contributed to Fleming's failure to win a third term on Nov. 6 when he was defeated by Jim Manfre.

The report by Bausch and Moody also cites the delayed response by Fleming's department. The Flagler County Sheriff's Office did not respond to the accident for about six hours because it was handled as a medical call. A passer-by called 9-1-1 to say that he believed a woman had passed out by the road and that she was bleeding from the mouth.

"There was a delay of several hours in law enforcement responding to and investigating the traffic crash," the report states. "Because of this delay and the reputed friendship between Sheriff Donald Fleming and John Fischer (Mrs. Fischer's husband), speculation focused on whether Mrs. or Mr. Fischer had contacted Sheriff Fleming immediately after the crash and whether Sheriff Fleming contacted the Fischers in an attempt to provide advice or assistance regarding the crash."

The report notes that on Jan. 31, Fleming told the FHP in a sworn audio-recorded interview that he first got a call from John Fischer at 6:48 p.m. "on the night in question," meaning Nov. 10, 2011. Fleming testified he was in his car with his wife heading to dinner in Ormond Beach when John Fischer called him, the report said. Fleming said the cellphone reception was bad but that John Fischer explained that his wife had been in an accident.

"According to Sheriff Fleming, Mr. Fischer stated that his wife believed that she had struck an animal," the report said.

Fleming told the FHP that he told John Fischer he would call back as soon as he arrived at the restaurant. Fleming testified he arrived at the restaurant at 7:06 p.m. and called John Fischer, who repeated that his wife thought she hit an animal.

Fleming said he told John Fischer to call the emergency operations number and did not talk to John Fischer anymore that evening.

Fleming told the FHP that when he arrived to work the next day he learned a woman had been killed in the crash involving Jamesine Fischer.

"The Sheriff specifically stated, a second time, under oath, that John Fischer had called him the night of the crash," the report said.

On Feb. 1, 2012, FHP investigator Brian Wood again talked to Fleming after the sheriff said he wanted to "amend his account."

Fleming said he had actually not spoken at all to John Fischer on Nov. 10, 2011.

Fleming said he got a call from John Fischer about 5:30 a.m. Nov. 11, 2011. Fleming said John Fischer told him that his wife had been in a traffic accident and believed she had hit an animal. Fleming said he told John Fischer to call the emergency operations number. Fleming said he followed up with a brief telephone conversation with John Fischer on the evening of Nov. 11 to see if he had reported the incident.

On April 25, 2012, Moody and Bausch interviewed Fleming again. Fleming said his first phone conversation with Fischer had been about 5:30 a.m. on Nov. 11.

"Sheriff Fleming maintained during our interview that during his first interview with FHP he had mistakenly assumed that the phone calls documented on telephone records that he had obtained, pertained to the day of the crash as opposed to the following day," the report states.

Bausch and Moody subpoenaed "all known telephone records" for Fleming and John and Jamesine Fischer. The phone records did not show any calls between Fleming and John Fischer or Jamesine Fischer on Nov. 10, 2011, the report states.

Prosecutors also interviewed John Fischer, who was described as "cooperative" in the report. John Fischer "denied under oath" ever contacting Fleming about the crash prior to the late morning hours of Nov. 11, 2011.

"Specifically, Mr. Fischer did not recall and did not believe that he called Sheriff Fleming on the night of the crash or the next morning, November 11, 2011 at 5:30 a.m," the report said.

In a statement on Sept. 12, 2012, Jamesine Fischer "denied that she contacted any law enforcement official concerning the crash prior to the morning of November 11, 2011."

<p>PALM COAST -- Flagler County Sheriff Don Fleming did not have "improper or illegal contact" with School Board member John Fischer or Fischer's wife, Jamesine, related to a fatal crash, but the sheriff's conflicting and inaccurate account about phone calls fueled public speculation of wrongdoing by a public official, according to prosecutors.</p><p>Jamesine Fischer is charged in the Nov. 10, 2011, crash that killed 76-year-old Francoise Pecqueur of Palm Coast as she walked her dog in the C-section of Palm Coast. Jamesine Fischer, 56, did not call the Sheriff's Office to report the wreck until just after 5:30 a.m. Nov. 11 &mdash; about 11 1/2 hours after the crash. </p><p>Fleming has said that just before Jamesine Fischer called the Sheriff's Office her husband called him at about 5:30 a.m. Nov. 11. </p><p>But on Jan. 31, 2012, Fleming gave investigators a detailed account of calls between him and John Fischer on the night of the accident, Nov. 10. The next day, Fleming called the Florida Highway Patrol and revised his story, according to an interim report from the office of State Attorney Norman R. Wolfinger of the 18th Judicial Circuit.</p><p>"From all available objective sources and interviews with Sheriff Donald Fleming, John Fischer, and Jamesine Fischer, there is currently no evidence that Sheriff Fleming had any improper or illegal contact with John or Jamesine Fischer in relation to the traffic crash that occurred on November 10, 2011, in Palm Coast, Florida," the report states.</p><p>"It is clear, however, that Sheriff Fleming's inaccurate and conflicting statements, one of which was made under oath, contributed to the public speculation of wrongful actions by a public official," the report states.</p><p>Fleming did not return a phone call seeking comment. </p><p>Prosecutors subpoenaed phone records, including cellphones, and found no records of calls between Fleming and the Fischers on the day of the accident, according to the report.</p><p>But to add to the questions surrounding the case, John Fischer told prosecutors that he did not call the sheriff at 5:30 a.m. Nov. 11. Phone records did not show that call either. </p><p>But Fleming said he received the call from John Fischer on a landline, the records of which would likely not show local calls. </p><p>The report was submitted by Russ Bausch and Laura Moody, both assistant state attorneys for the 18th Judicial Circuit, which received the case after local 7th Circuit State Attorney R.J. Larizza requested the governor reassign it because Fleming was a potential witness.</p><p>The Fischer controversy and a separate ethics complaint involving a complimentary membership to Hammock Beach Resort likely contributed to Fleming's failure to win a third term on Nov. 6 when he was defeated by Jim Manfre. </p><p>The report by Bausch and Moody also cites the delayed response by Fleming's department. The Flagler County Sheriff's Office did not respond to the accident for about six hours because it was handled as a medical call. A passer-by called 9-1-1 to say that he believed a woman had passed out by the road and that she was bleeding from the mouth. </p><p>"There was a delay of several hours in law enforcement responding to and investigating the traffic crash," the report states. "Because of this delay and the reputed friendship between Sheriff Donald Fleming and John Fischer (Mrs. Fischer's husband), speculation focused on whether Mrs. or Mr. Fischer had contacted Sheriff Fleming immediately after the crash and whether Sheriff Fleming contacted the Fischers in an attempt to provide advice or assistance regarding the crash." </p><p>The report notes that on Jan. 31, Fleming told the FHP in a sworn audio-recorded interview that he first got a call from John Fischer at 6:48 p.m. "on the night in question," meaning Nov. 10, 2011. Fleming testified he was in his car with his wife heading to dinner in Ormond Beach when John Fischer called him, the report said. Fleming said the cellphone reception was bad but that John Fischer explained that his wife had been in an accident. </p><p>"According to Sheriff Fleming, Mr. Fischer stated that his wife believed that she had struck an animal," the report said. </p><p>Fleming told the FHP that he told John Fischer he would call back as soon as he arrived at the restaurant. Fleming testified he arrived at the restaurant at 7:06 p.m. and called John Fischer, who repeated that his wife thought she hit an animal.</p><p>Fleming said he told John Fischer to call the emergency operations number and did not talk to John Fischer anymore that evening.</p><p>Fleming told the FHP that when he arrived to work the next day he learned a woman had been killed in the crash involving Jamesine Fischer.</p><p>"The Sheriff specifically stated, a second time, under oath, that John Fischer had called him the night of the crash," the report said. </p><p>On Feb. 1, 2012, FHP investigator Brian Wood again talked to Fleming after the sheriff said he wanted to "amend his account." </p><p>Fleming said he had actually not spoken at all to John Fischer on Nov. 10, 2011. </p><p>Fleming said he got a call from John Fischer about 5:30 a.m. Nov. 11, 2011. Fleming said John Fischer told him that his wife had been in a traffic accident and believed she had hit an animal. Fleming said he told John Fischer to call the emergency operations number. Fleming said he followed up with a brief telephone conversation with John Fischer on the evening of Nov. 11 to see if he had reported the incident. </p><p>On April 25, 2012, Moody and Bausch interviewed Fleming again. Fleming said his first phone conversation with Fischer had been about 5:30 a.m. on Nov. 11. </p><p>"Sheriff Fleming maintained during our interview that during his first interview with FHP he had mistakenly assumed that the phone calls documented on telephone records that he had obtained, pertained to the day of the crash as opposed to the following day," the report states.</p><p> Bausch and Moody subpoenaed "all known telephone records" for Fleming and John and Jamesine Fischer. The phone records did not show any calls between Fleming and John Fischer or Jamesine Fischer on Nov. 10, 2011, the report states.</p><p>Prosecutors also interviewed John Fischer, who was described as "cooperative" in the report. John Fischer "denied under oath" ever contacting Fleming about the crash prior to the late morning hours of Nov. 11, 2011.</p><p>"Specifically, Mr. Fischer did not recall and did not believe that he called Sheriff Fleming on the night of the crash or the next morning, November 11, 2011 at 5:30 a.m," the report said.</p><p>In a statement on Sept. 12, 2012, Jamesine Fischer "denied that she contacted any law enforcement official concerning the crash prior to the morning of November 11, 2011."</p>